“Whether a contemporary document - Ex.A10, which is a certified copy of the sale deed, can be used for comparing the signatures of the defendant on Exs.A1, A2, A3 to A8?” - 2023:APHC:21250

“Whether a contemporary document - Ex.A10, which is a certified copy of the sale deed, can be used for comparing the signatures of the defendant on Exs.A1, A2, A3 to A8?” - 2023:APHC:21250

Suit for recovery of amount - forgery plea taken by defendant - suit decreed - the defendant seeks to challenge the said concurrent findings of the two Courts on the ground that the signature of the defendant on the promissory note is compared with the signature on the certified copy of the sale deed, which is Ex.A10, and the finding of the trial Court is unsustainable under law.

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

THE HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH R0Y

Second Appeal No. 292 of 2023

THORATI VASANTHA RAO
Versus
PADALA NARAYANAMMA

JUDGMENT:

This Second Appeal is filed against the concurrent findings

recorded by the trial Court and the first appellate Court.

2) The Suit is filed for recovery of money on the foot of a

promissory note against the appellant, who is the defendant,

who has taken the plea of forgery of the suit promissory note.

The trial Court after considering the evidence that is adduced,

including the evidence of handwriting expert, held that the

defendant has signed the promissory note and executed the

same and that he is liable to pay the Suit amount. The first

appellate Court also on proper appreciation of evidence on

record, recorded a finding that the defendant has executed the

suit promissory note and that he is liable to pay the Suit

amount.

3) Now, the defendant seeks to challenge the said concurrent

findings of the two Courts on the ground that the signature of

the defendant on the promissory note is compared with the

signature on the certified copy of the sale deed, which is Ex.A10,

and the finding of the trial Court is unsustainable under law. 

2

CMR,J.

S.A.No.292 of 2023

Therefore, alleging that a substantial question of law involved in

this regard is whether the signature on the disputed document

can be compared with the signature on the certified copy of a

sale deed, the present Second Appeal is filed.

4) At the time of hearing, to a pointed question as to what is

the substantial question of law that is involved in this Second

Appeal filed against the concurrent findings of the two Courts,

learned counsel for the appellant would submit that the only

substantial question of law involved in this Second Appeal is:

“Whether a contemporary document - Ex.A10, which is a

certified copy of the sale deed, can be used for comparing the

signatures of the defendant on Exs.A1, A2, A3 to A8?”

5) However, when the Court has specifically directed him to

show the findings of both the trial Court and the first appellate

Court given to that effect in the two judgments alleging that the

signature of the defendant is proved on the disputed documents

on the basis of comparison made with the signature on Ex.A10,

certified copy of the sale deed, he failed to show the said findings

either in the judgement of the trial Court or in the judgement of

the first appellate Court.

3

CMR,J.

S.A.No.292 of 2023

6) Therefore, this Court absolutely do not find any

substantial question of law in this Second Appeal warranting

interference of this Court with the concurrent findings recorded

by the trial Court and the first appellate Court. The trial Court

as a first fact finding Court and the first appellate Court as a

second fact finding Court, have clearly recorded a finding that

the defendant has executed the disputed documents on the

basis of the evidence on record and on proper appreciation of the

same and held that he is liable to pay the Suit amount.

7) As the appellant miserably failed to substantiate that any

substantial question of law is involved in this Second Appeal

warranting interference of this Court with the concurrent

findings of the two fact finding Courts, this Second Appeal is

dismissed at the admission stage. No costs.

As a sequel, miscellaneous applications, pending if any,

shall also stand closed.

________________________________________________

JUSTICE CHEEKATI MANAVENDRANATH ROY

Date: 28-06-2023.

cs

Whether Even if the property is treated as coparcenary property, the plaintiff, being the wife of a deceased coparcener of the third generation, does not have any right to claim partition as her father-in-law, who is the 2 nd generation coparcener, is still alive and his share has not yet been crystallized. ? -2023:APHC:32588

Whether Even if the property is treated as coparcenary property, the plaintiff, being the wife of a deceased coparcener of the third generation, does not have any right to claim partition as her father-in-law, who is the 2 nd generation coparcener, is still alive and his share has not yet been crystallized. ?

held that The second incident of Mitakshara law enumerated above, states that the descendents up to the third generation can, at any time, claim partition. In the present case, the 1st defendant is the first generation, the 2nd defendant is the second generation and late Sri Pulla Rao and defendants 3 and 5 to 7 are the third generation of the coparcenary. There is no impediment for late Sri Pulla Rao to make a  claim for partition nor any impediment for the plaintiff to make such a claim. 

whether the properties transferred under the deeds of settlement executed by the 1st defendant cannot be included in the suit schedule as the deeds of settlement have not been challenged?

held that the deeds of settlement are void as they have been executed by a person, who does not have the right or authority to execute such deeds and consequently, no declaration is necessary in this regard, especially since the plaintiff is not a party to the documents.

suit for partition - 

 Both the trial Court and the appellate Court held that the 3rd defendant in his deposition, as DW.1, had admitted that there was a joint family and the suit schedule properties are coparcenary properties. On this basis, both the Courts had held that the suit schedule properties are joint family properties in which the plaintiff, as the widow and sole legal heir of her husband late Sri Pulla Rao, would be entitled to have a share. On question of settlement deeds, both the Courts below held that in view of the above finding, the 1st defendant did not have any right or authority to execute any deeds of settlement and the same are void. The Courts below, on the ground that the deeds of settlement are void, had held that there was no need for the plaintiff to seek any further declaration that the deeds are void or that the deeds of settlement do not affect the rights of the plaintiff over the suit schedule property.  2023:APHC:32588

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

Second Appeal No.318 of 2023

SRI KEDASU VENKATA SRINIVAS
Versus

SMT. KEDASU DEVI SUBBALSKHMI

JUDGMENT:

Heard Sri K.A. Narasimham, learned counsel appearing for Sri V. Sai

Kumar, learned counsel appearing for the appellants and Sri M.R.S.

Srinivas learned counsel appearing for the 1st respondent/plaintiff.

2. Defendants 3 and 6 in the original suit are the appellants

herein. For ease of reference, the parties are being referred to as they

have been arrayed in the suit.

3. The 1st defendant is the common ancestor. He was married

to the 9th defendant. The 1st defendant had two children, viz., the 2nd

defendant-son and the 8th defendant-daughter. The 2nd defendant had

two sons and three daughters, viz., the 3

rd defendant and late Sri Pulla

Rao, who is the husband of the plaintiff, who are sons; and defendants 5

to 7, who are the daughters of the 2nd defendant. The 4th defendant is the

son of the 3rd defendant. The plaintiff is the wife of late Sri Pulla Rao, who

was the other son of the 2nd defendant. In addition to this, the plaintiff is

also the daughter of the 8th defendant. The 1st defendant, 2nd defendant

and 9th defendant have passed away. The wife of the 2nd defendant had

also died and the date of her death is not available.

4. It is the case of the plaintiff that she was married to her first

cousin, i.e., late Sri Pulla Rao. She had given birth to a daughter on 

RRR,J.

S.A.No.318 of 2023

2

16.05.1990, who unfortunately passed away within three months after her

birth. Late Sri Pulla Rao, the husband of the plaintiff passed away

intestate on 11.05.2003 leaving the plaintiff as his only legal heir. The

plaintiff is said to have continued to reside in the matrimonial home along

with defendants 1 to 4 and 9 after the death of her husband. However,

the 2nd defendant started behaving badly with her and quarrelled with her

and demanded her to go to her parents house stating that she had no

share in the plaint schedule property. The plaintiff also came to know that

defendants 2 and 3 had made the 1st defendant to execute certain

settlement deeds in the names of defendants 3 and 4 in respect of some

of the plaint schedule properties as if they are his exclusive and absolute

properties. Having come to know of these facts, the plaintiff had filed

O.S.No.226 of 2005 before the Principal Senior Civil Judge, Kovvur for

partition of the suit schedule properties on the ground that they were joint

family properties on which every coparcener had a share and that she

would be entitled to a separate share amounting to 1/3 in the properties

as the legal heir of her husband late Sri Pulla Rao.

7. Defendants 8 and 9 remained ex-parte. The written

statement filed by the 1st defendant was adopted by defendants 2 to 7.

the case of the 1st defendant was that the properties shown in the suit

schedule were his self acquired properties and were not amenable to

partition. The 1st defendant also stated that one of the properties had

been purchased by him along with the daughter-in-law of his uncle and 

RRR,J.

S.A.No.318 of 2023

3

the said daughter-in-law had relinquished her share in favour of the 1st

defendant by receiving necessary consideration.

8. After trial and after hearing the submissions on all sides, the

trial Court passed a preliminary decree ordering partition of the plaint

schedule properties into 12 equal shares with the plaintiff being given one

share out of the 12 equal shares. Defendants 3 and 5 and 7 were also

declared to have one share. The 2

nd defendant being entitled to 4 shares

and the 8th defendant being entitled to 3 shares.

9. Aggrieved by this preliminary decree dated 17.12.2017,

defendants 2 to 7 moved A.S.No.34 of 2017 before the IX Additional

District Judge, Kovvur. This appeal was dismissed on 18.01.2023.

Aggrieved by the said order of dismissal, defendants 3 and 6 have moved

this Court by way of the present second appeal.

10. The defence raised before the trial Court and the appellate

Court were that the suit schedule property was the self acquired property

of the 1

st defendant; the 1st defendant, during his life time, had settled

northern half of item No.4 and Item No.1 in favour of the 3rd defendant

and items 2 and 3 in favour of the 4th defendant under two separate

registered settlement deeds dated 06.09.2005 and the suit would not be

maintainable against the said properties because the plaintiff had not

chosen to challenge these two deeds of settlement.

RRR,J.

S.A.No.318 of 2023

4

11. The plaintiff disputed the contention of the defendants that

the suit schedule property was the self acquired property of the 1st

defendant. She also contended, by way of a rejoinder, that the said deeds

of settlement are void as the 1st defendant had no right or title to execute

any settlement deeds and in any event these settlement deeds are hit by

the doctrine of lis pendens.

12. Both the trial Court and the appellate Court held that the 3rd

defendant in his deposition, as DW.1, had admitted that there was a joint

family and the suit schedule properties are coparcenary properties. On this

basis, both the Courts had held that the suit schedule properties are joint

family properties in which the plaintiff, as the widow and sole legal heir of

her husband late Sri Pulla Rao, would be entitled to have a share. On

question of settlement deeds, both the Courts below held that in view of

the above finding, the 1st defendant did not have any right or authority to

execute any deeds of settlement and the same are void. The Courts

below, on the ground that the deeds of settlement are void, had held that

there was no need for the plaintiff to seek any further declaration that the

deeds are void or that the deeds of settlement do not affect the rights of

the plaintiff over the suit schedule property. Both the Courts below also

held that the deeds of settlement were not proved, as the attestors to the

said documents were not examined and no statement was made that the

attestors are not alive or available to be examined.

RRR,J.

S.A.No.318 of 2023

5

13. Sri K.A. Narasimham, learned counsel appearing for the

appellants raised the following grounds of appeal as the questions of law.

1. The plaintiff could not have claimed any partition as her father-inlaw, viz., the 2nd defendant, was alive at the time of filing of the

suit and she cannot claim any share till the share of the 2nd

defendant is crystallized.

2. The wife of the 2nd defendant, who is the mother-in-law, of the

plaintiff, was also entitled to a share along with the plaintiff and she

was not arrayed as a party which is fatal to the case of the plaintiff.

3. The calculation of shares made by the trial Court and affirmed by

the appellate Court is wrong as the share of the mother-in-law of

the plaintiff was not taken into account.

4. Late Sri Pulla Rao, who is the grand-son of the 2

nd defendant, could

not have claimed partition during the life time of his father-the 2nd

defendant, and as such the plaintiff as the legal heir of late Sri Pulla

Rao cannot raise such a claim.

5. The deeds of settlement, under which the 1st defendant had

transferred certain properties to defendants 3 and 4 have not been

challenged and the claim of the plaintiff, to the extent of these

properties, would have to be negatived, as the deeds of settlement

have not been set aside.

RRR,J.

S.A.No.318 of 2023

6

6. The burden of proving that there is a Hindu Undivided Family (HUF)

and that the coparcenary of this family has any property, is on the

plaintiff and the same has not been discharged.

14. Sri K.A. Narasimham, learned counsel for the appellants

relies upon the judgment of the learned Single Judge of the erstwhile High

Court of Andhra Pradesh in Sundaragiri Ramulu vs. Sundaragiri Siddi

Rajaiah1

. He also relied upon the a judgment of the Hon‘ble Supreme

Court in Shasidhar and Ors., vs. Smt. Ashwini Uma mathad and

Anr.,

2

and Vineeta Sharma vs. Rakesh Sharma and Ors.

3

.

15. Sri M.R.S. Srinivas, learned counsel appearing for the 1st

respondent/plaintiff relying upon the judgment of the Hon‘ble Supreme

Court in State Bank of India vs. Ghamandi Ram4

, would contend that

there is no bar for any member of the coparcenary to claim partition and

that there is no specific bar that such claim cannot be made while the

members of the preceding generation of the joint family are alive. He

would further contend that the judgment of the Hon‘ble Supreme Curt in

Uttam vs. Saubhag Sing and Ors.,5

relied upon by Sri K.A.

Narasimham would not be applicable to the present case.

Consideration of the Court:

1

2008 (6) ALT 314 (S.B.)

2

2015 (3) ALT (SC0 7 (D.B.)

3

(2020) 9 SCC 1 : 2020 SCC OnLine SC 641

4

AIR 1969 SC 1330

5

(2016) 4 SCC 68

RRR,J.

S.A.No.318 of 2023

7

16. The grounds raised by Sri K.A. Narasimham can be

summarised as follows:

1) Whether the suit schedule properties are amenable to

partition as coparcenary property. The subsidiary grounds raised on this

question are – (i) the burden of proving, that the property in question is

coparcenary property, is on the plaintiff which has not been discharged;

(ii) the details of the acquisition of property, given by the 1st defendant,

makes it clear that all the suit properties are self acquired properties.

2) Even if the property is treated as coparcenary property, the

plaintiff, being the wife of a deceased coparcener of the third generation,

does not have any right to claim partition as her father-in-law, who is the

2

nd generation coparcener, is still alive and his share has not yet been

crystallized.

3) The 1st defendant, had already transferred some of the

properties enumerated in the suit schedule and these properties cannot be

partitioned as the plaintiff has not chosen to challenge the validity of these

deeds of settlement.

Ground No.1:

17. The trial Court and the appellate Court have held that the

properties are coparcenary properties on the basis of the admissions made

by the 3rd defendant, who had examined himself as DW.1. Apart from this,

both the courts had also held that the description of the source of the 

RRR,J.

S.A.No.318 of 2023

8

property, in the revenue records, shows that this is ancestral property and

consequently would have to be treated as coparcenary property. This

Court has not been shown anything to arrive at any contrary conclusion.

In any event, these are findings of fact, which are plausible and cannot be

disturbed by this Court. In that view of the matter, the burden of proving

that the suit schedule property is coparcenary property has been

discharged by the plaintiff.

Ground No.2:

18. Sri K.A. Narasimham, learned counsel appearing for the

appellants had contended that neither late Sri Pulla Rao nor the plaintiff as

his heir can claim partition of the coparcenary property as late Sri Pulla

Rao would be the third generation o f the member of the coparcenary and

would not be entitled to claim partition and secondly neither the plaintiff

nor the legal heir of late Sri Pulla Rao claim such partition.

19. Hon‘ble Supreme Court in State Bank of India vs.

Ghammandi Ram, had set out , in paragraph 7 of the judgment, the law

in relation to the property of Hindu Undivided Family, in the following

manner, –

According to the Mitakshara School of Hindu Law all the

property of a Hindu joint family is held in collective ownership

by all the coparceners in a quasi-corporate capacity. The

textual authority of the Mitakshara lays down in express

terms that the joint family property is held in trust for the

joint family members then living and thereafter to be born 

RRR,J.

S.A.No.318 of 2023

9

(see Mitakshara, Chapter I, 1-27). The incidents of coparcenership under the Mitakshara law are: first, the lineal

male descendants of a person up to the third generation,

acquire on birth ownership in the ancestral properties of such

person; secondly, that such descendants can at any time

work out their rights by asking for partition; thirdly, that till

partition each member has got ownership extending over the

entire property, conjointly with the rest; fourthly, that as a

result of such co-ownership the possession and enjoyment of

the properties is common; fifthly, that no alienation of the

property is possible unless it be for necessity, without the

concurrence of the coparceners, and sixthly, that the interest

of a deceased member lapses on his death to the survivors. A

coparcenary under the Mitakshara School is a creature of law

and cannot arise by act of parties except in so far that on

adoption the adopted son becomes a co-parcener with his

adoptive father as regards the ancestral properties of the

latter. In Sundaranam Maistri v. Harasimbhulu Maistri [ILR 25

Mad 149 at 154]

Mr Justice Bhashyam Ayyangar stated the legal position

thus:

―The Mitakshara doctrine of joint family property is

founded upon the existence of an undivided family, as a

corporate body (Gan Savant Bal Savant v. Narayan Bhond

Savant) [ILR 7 Bom 467] and Mayne's Hindu Law and Usage,

(6th Edn para 270) and the possession of property by such

corporate body. The first requisite therefore is the family unit;

and the possession by it of property is the second requisite.

For the present purpose, female members of the family may

be left out of consideration and the conception of a Hindu

family is a common male ancestor with his lineal descendants

in the male line, and so long as that family is in its normal

condition viz. the undivided state — it forms a corporate 

RRR,J.

S.A.No.318 of 2023

10

body. Such corporate body, with its heritage, is purely a

creature of law and cannot be created by act of parties, save

in so far that, by adoption, a stranger may be affiliated as a

member of that corporate family.‖

Adverting to the nature of the property owned by such

a family the learned Judge proceeded to state:

―As regards the property of such family, the

‗unobstructed heritage‘ devolving on such family, with its

accretions, is owned by the family, as a corporate body, and

one or more branches of that family, each forming a

corporate body within a larger corporate body, may possess

separate ‗unobstructed heritage‘ which, with its accretions,

may be exclusively owned by such branch as a corporate

body.‖

Having regard to the juristic nature of the Hindu joint

family, according to the doctrine of Mitakshara, we are of the

opinion that the Hindu joint family firm of Ghamandi Ram

Gurbax Rai cannot be treated as an ‗individual‘ within the

meaning of the notification of the Pakistan Government,

dated 19th February, 1952, but the said firm must be treated

as ‗a body of individuals whether incorporated or not‘ within

the meaning of that notification.‖

20 The second incident of Mitakshara law enumerated above,

states that the descendents up to the third generation can, at any time,

claim partition. In the present case, the 1st defendant is the first

generation, the 2nd defendant is the second generation and late Sri Pulla

Rao and defendants 3 and 5 to 7 are the third generation of the

coparcenary. There is no impediment for late Sri Pulla Rao to make a 

RRR,J.

S.A.No.318 of 2023

11

claim for partition nor any impediment for the plaintiff to make such a

claim.

21. Sri K.A. Narasimham, learned counsel for the appellant had

contended that the mother-in-law of the plaintiff had not been included in

the array of parties and she would also have a share in view of the demise

of the 2nd defendant. It is contended that the absence of the mother-inlaw of the plaintiff, in the suit, is fatal to the maintainability of the suit.

This contention has not been raised either before the trial Court or before

the first appellate Court and has been raised for the first time before this

Court. A perusal of the pleadings and the orders of the trial Court and the

appellate Court would show that the mother-in-law of the plaintiff had

passed away and no date of her passing away has been set out anywhere.

In view of the absence of any pleading about the necessity of including

the mother-in-law of the plaintiff, this Court cannot countenance such an

argument at this stage. It is also not clear as to whether the mother-inlaw of the plaintiff had passed away before the filing of the suit or after

the filing of the suit.

22. The contention of the defendants that the properties

transferred under the deeds of settlement executed by the 1st defendant

cannot be included in the suit schedule as the deeds of settlement have

not been challenged, has been negatived by both the trial Court and the

first appellate Court. This contention was negatived on two grounds –

firstly, the deeds of settlement have not been proved in accordance with 

RRR,J.

S.A.No.318 of 2023

12

law and cannot be taken into account; and secondly, the deeds of

settlement are void as they have been executed by a person, who does

not have the right or authority to execute such deeds and consequently,

no declaration is necessary in this regard, especially since the plaintiff is

not a party to the documents. This Court does not find any reason to

differ with the said findings of the trial Court and the first appellate Court.

23. For all the aforesaid reasons, there are no grounds for this

Court to interfere, and further, there are no question of law, much less

substantial questions of law, requiring any adjudication by this Court.

24. Accordingly, the second appeal is dismissed. There shall be

no order as to costs. As a sequel, pending miscellaneous petitions, if any,

shall stand closed.

__________________________

R. RAGHUNANDAN RAO, J.

12th September, 2023

Js.

RRR,J.

S.A.No.318 of 2023

13

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

Second Appeal No.318 of 2023

12th September, 2023

Js.

suit for eviction - the appellant was unable to demonstrate that the plaint schedule property is part of coparcenary property. On the other hand, the trial Court accepted various documents produced by the 1st respondent and 2nd respondent to held that the suit schedule property is the self acquired property of the 1st respondent. The trial Court had also held that the appellant had not discharged the initial burden of demonstrating that the property is coparcenary property. 2023:APHC:32587

 suit for eviction - the appellant was unable to demonstrate that the plaint schedule property is part of coparcenary property. On the other hand, the trial Court accepted various documents produced by the 1st respondent and 2nd respondent to held that the suit schedule property is the self acquired property of the 1st respondent. The trial Court had also held that the appellant had not discharged the initial burden of demonstrating that the property is coparcenary property. 2023:APHC:32587

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

THE HON'BLE SRI JUSTICE B KRISHNA MOHAN

SECOND APPEAL No.333 of 2023

SARAKANAM NAGAMANI
Versus

SARAKANAM BABJI RAO (DIED)HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

Second Appeal No.333 of 2023

JUDGMENT:

Heard Sri G.V. Anand Kumar, learned counsel for the appellant.

2. The brief facts of the case are –

The 1

st respondent herein had filed O.S.No.165 of 2008 against the

appellant herein for recovery of possession of the suit schedule property

and for future profits. The 1st respondent had two sons, viz., the 2nd

respondent herein and the husband of the appellant. The appellant was

residing along with her husband in the plaint schedule property. After the

demise of the husband of the appellant, the 1st respondent had requested

the appellant as well as her children to vacate the property. As the

appellant was not vacating the property, the 1st respondent got a notice

issued on 22.12.2007 demanding the appellant to vacate and handover

the plaint schedule property to the 1st respondent. Thereafter, he filed

O.S.No.165 of 2008 on the file of the Additional Senior Civil Judge, Eluru

for recovery of possession of the suit schedule property. During the course

of the suit, the 1st respondent passed away. The 2nd respondent, on the

basis of a registered Will dated 06.07.2008 executed by the 1st

respondent, had claimed absolute ownership over the plaint schedule

property and impleaded himself as the 2nd plaintiff in the suit.

RRR,J.

S.A.No.333 of 2023

2

3. The case of the respondents was that the suit schedule

property is the self acquired property of the 1st respondent and the

occupation of the suit schedule property by the appellant, despite

demands made by the 1st respondent to vacate the property, is illegal and

the respondents were entitled to recover the property.

4. The appellant took various defences. In the first place, the

appellant contended that the suit schedule property is joint family

property in which her husband also had a share and consequently, she

and her children would be entitled to such share. Secondly, there was a

oral partition between the respondents and her husband and consequently

she could not be evicted from the property. Thirdly, the property would

devolve equally on the 2nd respondent and on her and her children, who

are legal heirs of her husband and consequently they cannot be evicted.

She also disputed the Will dated 06.07.2008 under which the 1st

respondent had bequeathed the property to the 2nd respondent.

5. The trial Court decreed the suit on 01.09.2017. Aggrieved by

the said judgment and decree, the appellant moved the family Court-cumVII Additional District Judge, West Godavari at Eluru, by way of A.S.No.99

of 2017, which was dismissed on 25.04.2023. The present second appeal

has been filed by the appellant against the dismissal of A.S.No.99 of 2017.

6. Sri G.V. Anand Kumar, learned counsel appearing for the

appellant would submit that both the trial Court and the appellate Court 

RRR,J.

S.A.No.333 of 2023

3

had misdirected themselves in holding that the property was not joint

family property and in accepting the registered Will dated 06.07.2008

under which the 1st respondent is said to have bequeathed the plaint

schedule property to the 2nd respondent. The trial Court, had framed

issues on these lines and had held that the appellant was unable to

demonstrate that the plaint schedule property is part of coparcenary

property. On the other hand, the trial Court accepted various documents

produced by the 1st respondent and 2nd respondent to held that the suit

schedule property is the self acquired property of the 1st respondent. The

trial Court had also held that the appellant had not discharged the initial

burden of demonstrating that the property is coparcenary property. This

Court was not show any material to held otherwise. In any event, the

appellate Court also went through the same evidence and had come to a

similar conclusion. This Court does not find any perversity or mistake

requiring this Court to interfere with the said findings of fact.

7. As far as the Will is concerned, the 2nd respondent had

proved the Will by examining Pws.2, 3 and 5. It may be noted that PWs.2

and 3 are the attestors of the Will and PW.5 is the scribe of the will.

8. In these circumstances, this Court does not find any

question of law, much less substantial question of law, which required to

be decided in this second appeal.

RRR,J.

S.A.No.333 of 2023

4

9. Accordingly, the second appeal is dismissed. There shall be

no order as to costs. As a sequel, pending miscellaneous petitions, if any,

shall stand closed.

__________________________

R. RAGHUNANDAN RAO, J.

12th September, 2023

Js.

RRR,J.

S.A.No.333 of 2023

5

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

Second Appeal No.333 of 2023

12th September, 2023

Js.

suit for mandatory injunction - Once the Court comes to a conclusion that there is an unauthorized construction covering or encroaching the portion of the road, the Court has got ample power to restore the public road for its public utility and usage by ordering mandatory injunction if so warranted - 2023:APHC:39734

 suit for mandatory injunction - Once the Court comes to a conclusion that there is an unauthorized construction covering or encroaching the portion of the road, the Court has got ample power to restore the public road for its public utility and usage by ordering mandatory injunction if so warranted - 2023:APHC:39734

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

THE HON'BLE SRI JUSTICE B KRISHNA MOHAN

SECOND APPEAL No.390 of 2023

Thamadapu Suryanarayana,

S/o.Appala Swamy, Hindu, Male, age

49 years, Business, R/o.Pentapadu

Village, Pentapadu Mandal, West

Godavari District and another.

 …. Appellants

Versus

S.T.V. Rajagopalacharyulu, (Plaintiff

No.1) S/o.S.T.V. Srinivasacharyulu,

Hindu, Male, age 52 years, Lecturer,

R/o.K.B.J. College, Bhimavaram and

13 others.

(R4 to R14/D4 to D14 are set-exparte

in O.S.No.64/99 and R5 died

pendentilite the appeal and no steps

were taken and case against R5

abated. Hence, the Hon’ble Court may

be pleased to dispense with the notices

of R4 to R14 as no relief is claimed

against them in this appeal)

….Respondents

JUDGMENT:

Heard the learned counsel for the appellants. None

appears for the respondents.

2. This Second Appeal is filed against the judgment and

decree passed in A.S.No.50 of 2003, on the file of Senior Civil

Judge, Tadepalligudem, dated 28.12.2022, confirming the

judgment and decree in O.S.No.64 of 1999 on the file of 

2

Principal Junior Civil Judge, Tadepalligudem, dated

24.09.2003.

3. The appellants herein are the defendant Nos.2 and 3 in

the suit before the trial Court and the appellants in the lower

appellate Court. The respondent Nos.1 and 2 herein initiated

action in O.S.No.64 of 1999 on the file of Principal Junior

Civil Judge, Tadepalligudem, seeking for grant of mandatory

injunction directing the defendant Nos.1 to 3 therein to

remove all the constructions made and to be made in the

northern road shown as A B C D in the plaint plan, to restore

the road and road margins in their normal width of 40 feet

and grant of permanent injunction. The plaint schedule was

shown as D.No.3/131 in an extent of 1450 Sq. Yards site

with an up-stair building, old terraced out-house within the

boundaries as mentioned in the plaint schedule. The

scheduled plan showing the road and construction of the

shops and the constructions of A B C D is attached to the

said plaint plan.

4. The trial Court upon consideration of the matter on

merits held that, the suit filed by the plaintiffs, particularly,

the 1st plaintiff is hereby decreed and the defendant Nos.1 to

3 are directed to remove the constructions made by the 3rd

3

defendant in the northern road shown as A B C D of the

plaint plan opposite to the house of the 1st plaintiff within a

period of 45 days from the date of receipt of the judgment

and if they failed to do so, the 1st plaintiff is at liberty to get it

done through the process of the Court and recover its entire

expenses from the defendant Nos.1 and 3. Before coming to

such conclusion, the trial Court appreciated the evidence on

record and observed that, recital of the document Ex.A-1 is

that the northern boundary for a part of the schedule

property is shown as Santha market Sthalam. By this, the

learned counsel for the defendant Nos.2 and 3 wants to

impress upon the Court that there is no clear recital in the

earliest document of 1938. But at the same time taking into

consideration the relevant material viz., the boundary recitals

shown in the document Ex.A-21 wherein it is so referred that

there is a Panchayat road on the northern side of the

property covered under the said document and the said

document relates to P.W.2, his brother and father. The

version of the Grampanchayat is also that, in all

preponderance of the probabilities that there is a

gramakantam site and there are some records or registers to

show the same. So as per the Ex.A-21, it may be inferred 

4

that there must be some change in the usage of the earlier

sandy market area as public road. It was also observed that

the present disputed wet grinding machinery shed and rice

mill are within the road margin of the said area that situated

on the northern side of the schedule property. As per P.W.1

there are certain violations of Panchayat rules and

notifications while granting permission or giving licence to

the 3rd defendant for the construction of shed to run the wet

grinding business etc.,. Considering the various decisions of

the erstwhile High Court of Andhra Pradesh, the trial Court

held that the said wet grinding machine shed was

constructed in violation of the Rules and bye-laws of the

Panchayat Raj Act and the sanctioned plan and as such, the

3rd defendant is not entitled to seek for any equities.

5. The trial Court further observed that, no person can be

allowed to occupy a portion of the public road, a high way or

even a public path way and argue that even after such

encroachment there is sufficient place left for the public to

pass by. Even though, the said permission or licence was

given for doing business by the Gram-Panchayat, the

defendants are using the said shed for their residence also

where it is evident that they performed the marriage of their 

5

daughter at that place. It came in evidence that, the

defendant Nos.2 and 3 have given on permanent lease of the

said site along with the owners of the rice mill that situated

to the East of the disputed shed. Thus, the trial Court found,

various discrepancies and variations in the stand of the

defendant Nos.1 to 3 from the pleadings to their evidence.

Thus, upon the said appreciation of the evidence, the trial

Court came to a conclusion that the entire width of 40 feet

area or site is that of a public road including its margin on

either side and drainages and the 1st defendant failed to

establish that the disputed site is that of a gram kantam site

by producing any cogent, convincing, satisfactory and oral

and documentary evidence except the sole testimony of

P.W.1. Aggrieved by the said judgment/decree of the trial

Court dated 24.09.2003, the defendant Nos.2 and

3/appellants herein preferred A.S.No.50 of 2003 on the file of

Senior Civil Judge, Tadepalligudem. By virtue of the

judgment/decree dated 28.12.2022, the said appeal was

dismissed, confirming the judgment of the trial Court while

accepting the reasoning and conclusion given by the trial

Court. Having unsuccessful before the Courts below, the

appellants filed this Second Appeal raising the ground that, 

6

whether the suit for mandatory injunction without seeking

the relief of declaration to the effect that act of defendants

including the resolution of 1st defendant Gram Panchayat is

maintainable or not?

6. The learned counsel for the appellants canvassing this

ground as substantial question of law relied upon the

decision of the erstwhile High Court of Andhra Pradesh

reported in Kachana PAdmavathi and another Vs.

Proddatur Municipality rep. By the Commissioner and

others1.

7. The learned counsel for the appellants submits that,

the plaintiffs have to seek for declaration of title before alone

seeking the relief of mandatory injunction. In this case, no

such declaration was sought by the plaintiffs. But ignoring

the said legal requirement, the trail Court as well as the lower

appellate Court decreed the suit as prayed for by the plaintiff

No.1, while granting the mandatory injunction to remove the

structures for the purpose of restoration of the public road.

8. In the considered opinion of this Court and in the facts

and circumstances of the case, the plaintiff cannot seek any

declaration for grant of mandatory injunction with respect to

1

2007 (4) ALT 58 (S.B.)

7

the public road for its restoration and it would suffice to

establish that there is a public road and there is an

unauthorized construction by some of the defendants as

pleaded in the suit. Once the Court comes to a conclusion

that there is an unauthorized construction covering or

encroaching the portion of the road, the Court has got ample

power to restore the public road for its public utility and

usage by ordering mandatory injunction if so warranted.

9. As discussed above, there is no infirmity in the

judgment and decree of the Courts below to show any

indulgence in this Second Appeal as the ground raised by the

appellants does not form part of any substantial question of

law.

10. Accordingly, the Second Appeal is dismissed. Interim

order if any deemed to have been vacated. There shall be no

order as to costs.

As a sequel, Miscellaneous Petitions pending, if any,

shall stand closed.

_______________________________

JUSTICE B KRISHNA MOHAN

06.10.2023

PGT

Whether the suit for injunction simpliciter without seeking for declaration was competent? Not necessary on mere denial of title - 2023:APHC:34348

Whether the suit for injunction simpliciter without seeking for declaration was competent? Not necessary on mere denial of title - 2023:APHC:34348

23. The issue involved was very simple. The plaintiff claimed

title based on the registered sale deed dated 25.09.1996. The

title of the petitioner’s vendor was not in dispute. The appellants

claimed title based on the registered sale deed in their favour

dated 25.02.2008 executed by the power of attorney holder of

the same vendor. The plaintiff as also the defendants are not at

issue that Gogineni Venkataramana was the owner. The

registered sale deed in favour of the plaintiff dated 25.09.1996

is prior in point of time than the sale deed in favour of the

defendants dated 25.02.2008. The suit did not involve a 

14

complicated question on title. Nor the appellants’ sale deed

dated 25.02.2008 could be considered as casting cloud on the

title of the plaintiff based on her earlier registered sale deed

dated 25.09.1996. The appellants, merely by disputing the

petitioner’s sale deed that it was not signed by the plaintiff’s

vendor because he used to sign in English, in the view of this

Court cannot be considered to caste cloud on the plaintiffs title,

so as to direct the plaintiff to seek the costlier and more

cumbersome remedy of relief of declaration. The learned Trial

Court has carefully exercised the discretion vested in it in terms

of Para 21 (d) of Anathula Sudhakar (supra).

*HON’BLE SRI JUSTICE RAVI NATH TILHARI

+SECOND APPEAL No.395 OF 2023

%21.09.2023

#Raavi Venkateswara Rao,

 S/o. R. Anjaneyulu,

 Hindu, aged about 78 years,

 R/o. D.No. 5-87-65A,

 Lakshmipuram Main Road,

 3/1, Chandramouli Nagar,

 Guntur Town & District

 and others.

 ……Appellants/

Appellants/Defendants

And:

$1. Ellanti Nirmala,

 W/o. Murali,

 Hindu, aged about 55 years,

 R/o. D.No.1-207,

 Veluru Village,

 Pichatur Mandal,

 Chittoor District

 and others.

….Respondents/

Respondents/Plaintiffs

!Counsel for the plaintiffs : Sri Sasanka Bhuvanagiri,

 learned counsel,

 representing Sri Alapati

 Lalith Nikhil, learned

 counsel for the appellants

^Counsel for the respondents :

<Gist:

>Head Note:

? Cases referred:

1. (2008) 4 SCC 594

2. (2019) 17 SCC 692

3. (2020) 19 SCC 57

4. (2015) 16 SCC 540

2

HIGH COURT OF ANDHRA PRADESH

SECOND APPEAL No.395 OF 2023

 Raavi Venkateswara Rao,

 S/o. R. Anjaneyulu,

 Hindu, aged about 78 years,

 R/o. D.No. 5-87-65A,

 Lakshmipuram Main Road,

 3/1, Chandramouli Nagar,

 Guntur Town & District

 and others.

 ……Appellants/

Appellants/Defendants

And:

1. Ellanti Nirmala,

 W/o. Murali,

 Hindu, aged about 55 years,

 R/o. D.No.1-207,

 Veluru Village,

 Pichatur Mandal,

 Chittoor District

 and others.

….Respondents/

Respondents/Plaintiffs

DATE OF JUDGMENT PRONOUNCED: 21.09.2023.

3

SUBMITTED FOR APPROVAL:

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

1. Whether Reporters of Local newspapers may be

Allowed to see the judgments? Yes/No

2. Whether the copies of judgment may be marked

to Law Reporters/Journals? Yes/No

3. Whether Your Lordships wish to see the fair

 Copy of the Judgment?

 Yes/No

________________________

 RAVI NATH TILHARI, J

4

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

SECOND APPEAL No.395 of 2023

JUDGMENT:- (per Hon’ble Sri Justice Ravi Nath Tilhari)

1. Heard Sri Sasanka Bhuvanagiri, learned counsel,

representing Sri Alapati Lalith Nikhil, learned counsel for the

appellants.

2. This Second Appeal under Section 100 of the Code of Civil

Procedure (C.P.C) by the defendant/appellants arises out of

O.S.No.238 of 2012 on the file of the I Additional Junior Civil

Judge, Tirupati which was decreed vide the judgment/decree

dated 07.01.2017 and was affirmed in A.S.No.126 of 2017 vide

judgment/decree dated 13.03.2023 passed by the V Additional

District Judge, Tirupati dismissing the appeal of the present

appellants.

3. The plaintiff/respondent No.1 namely Ellanti Nirmala filed

O.S.No.238 of 2012 for permanent injunction restraining the

defendants therein (the present appellants and the respondent

No.2) and their men etc. from, in any way interfering with the

plaintiff's peaceful possession and enjoyment of the plaint

scheduled property.

4. The plaintiff's case was that originally the property of an

extent of Ac. 2.75 cents in Sy.No.11/2B 2 of No.9, Akkarampalli 

5

Revenue Village accounts was the absolute property of one

Pedirappagari Kamalamma. She was in possession and

enjoyment and sold it out to one Marisetti Venkatachalam

under a registered sale deed dated 15.06.1981 for consideration

and also delivered possession to him. Subsequently,

M. Venkatachalam sold out, to an extent of Ac. 0.10 1/3rd cents

out Ac. 2.75 cents with specific boundaries in Sy.No.11/2B 2 in

favour of one Gogineni Venkataramana and he sold out the site

measuring 2240 sq.ft with specific boundaries and

measurements as mentioned in the plaint schedule property in

favour of the plaintiff under the registered sale deed dated

25.09.1996. The plaintiff has been in possession and enjoyment

of the plaint schedule property without any interruption from

anybody. The defendants are no way concerned with the plaint

scheduled property but high handedly made a forcible attempt

on 03.06.2012 to grab while the plaintiff was attempting to

fence the plaint scheduled property with barbed wire.

Consequently the plaintiff had to file the suit.

5. The defendants filed written statement. Their pleading

inter alia is that one Gogineni Venkataramana purchased the

suit scheduled property under a registered sale deed dated

23.01.1984 from his vendor Marisetti Venkatachalam.

Subsequently, Marisetti Venkatachalam executed registered 

6

General Power of Attorney (GPA) in favour of the 2nd defendant

on 14.11.2007. Pursuant of the registered General Power of

Attorney, the power of attorney holder executed a registered sale

deed in favour of the 1st and the 3rd defendants under a

registered sale deed on 25.02.2008 and also delivered

possession to them, and since then they have been in

possession and enjoyment of the property without any

interruption. The 1st defendant purchased the property situated

on the southern side. Even prior thereto the 1st defendant had

purchased a vacant site under a registered sale deed. The

1st defendant and the 3rd defendant constructed a compound

with cement bricks with a height of 5 feet for all three sites

owned by them. There are two sheds roofed with asbestos

cement sheds constructed by the 1st defendant on the said

compound and they are in possession and enjoyment of the suit

property without any interruption from anybody. With respect

to the sale deed in favour of the plaintiff, it was submitted that

it did not bear the signatures of Gogineni Venkataramana as he

used to sign in English only. The plaintiff’s registered sale deed

dated 25.09.1996 was pleaded to be created and fabricated with

forged signatures and by impersonation. It was also pleaded

that all the original title deeds were handed over to the 1st

defendant at the time of execution of registered sale deed in his 

7

favour by Gogineni Venkataramana and those original deeds

were in their possession. It was also their case that the plaintiff

never entered into the possession of the plaint scheduled

property. The alleged interference by defendants was denied as

the plaintiffs imagination to grab the plaint scheduled property.

6. The suit against the 3rd defendant, the present respondent

No.2 was dismissed as per the order dated 21.08.2012.

7. The learned Trial Court framed the following issues:-

(1) Whether the plaintiff has been in possession and

enjoyment of the plaint schedule property as on the date

of filing of the suit?

(2) Whether the defendants have made any attempts to

dispossess the plaintiff from the plaint schedule property?

(3) Whether the plaintiff is entitled for grant of permanent

injunction in respect of the plaint schedule property?

(4) To what relief?

8. In evidence, on behalf of the plaintiff, PWs. 1 to 3 were

examined and Exhibits A.1 to A.4 were marked.

9. On behalf of the defendants, DWs. 1 and 2 were examined

and Exhibits B.1 to B.6 were marked.

10. On issue Nos.1 to 3, the learned Trial Court recorded

finding that the plaintiff succeeded in proving her possession

over the property as on the date of filing of the suit and the

defendants were interfering with her possession and enjoyment.

The Ex.A1, the registered sale deed in favour of the plaintiff was

unchallenged by the defendants, which was a document 

8

executed and registered earlier in point of time to Ex.B2, the

registered sale deed dated 25.02.2008 in favour of the defendant

Nos.1 and 3 by the defendant No.2 and Ex.B3, the registered

general power of attorney dated 14.11.2007. The learned Trial

Court further observed that Ex.B3 could also not be proved.

11. In view of the findings on issue Nos.1, 2 and 3, the

learned Trial Court decreed the suit vide judgment and decree

dated 07.01.2017.

12. The defendant Nos.1 and 2 preferred A.S.No.126 of 2017.

The learned V Additional District Judge, Tirupati held that the

plaintiff was in possession of the suit property. It observed that

possession follows title and therefore the plaintiff was entitled to

protect her possession based on Ex.A1. The appellate court

dismissed the appeal of the appellants and confirmed the

judgment and decree of the learned Trial Court.

13. Learned counsel for the appellants raised the only point

that the plaintiff’s simple suit for injunction was not

maintainable. The plaintiff did not seek for declaration of her

title. He submitted that a complicated question of title was

involved in the suit and in view of the sale deed dated

25.02.2008 in favour of defendant Nos.1 and 3 a cloud was cast

over the plaintiff’s title. He submitted that, consequently, in

view of the law as laid down in Anathula Sudhakar v. 

9

P. Buchi Reddy1, the suit for injunction simpliciter was not

maintainable nor could be decreed unless there was relief of

declaration of title in favour of the plaintiff/respondent.

14. I have considered the submissions advanced by the

learned counsel for the appellants and perused the material on

record.

15. The following point arises for consideration:-

Whether the suit for injunction simpliciter without

 seeking for declaration was competent?

16. Learned counsel for the appellants submitted that simple

suit for injunction without seeking declaration was not

maintainable. Learned counsel for the appellants placed

reliance in Clause (b) of Para 21 of Anathula Sudhakar

(supra) to submit that since it was a suit for injunction

simpliciter with respect to vacant site, based on the title deed

with respect to which the defendants raised cloud, there should

have been a prayer for declaration of title also and in the

absence of such a prayer the Trial Court committed error of law

in decreeing the suit based on the sale deed.

17. The law is well settled, as to when simple suit for

injunction is maintainable and as to when the plaintiff has to

seek declaration of title as well.

1

(2008) 4 SCC 594

10

18. In Anathula Sudhakar (supra) the Hon’ble Apex Court

summarized the position, in regard to the suits for prohibitory

injunction relating to immovable property in Para 21 of the

report as under:-

“21. To summarize, the position in regard to suits for

prohibitory injunction relating to immovable property, is as

under:

(a) Where a cloud is raised over plaintiff's title and he

does not have possession, a suit for declaration and

possession, with or without a consequential injunction, is

the remedy. Where the plaintiff's title is not in dispute or

under a cloud, but he is out of possession, he has to sue for

possession with a consequential injunction. Where there is

merely an interference with plaintiff's lawful possession or

threat of dispossession, it is sufficient to sue for an

injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only

with possession, normally the issue of title will not be

directly and substantially in issue. The prayer for injunction

will be decided with reference to the finding on possession.

But in cases where de jure possession has to be established

on the basis of title to the property, as in the case of vacant

sites, the issue of title may directly and substantially arise

for consideration, as without a finding thereon, it will not be

possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for

injunction, unless there are necessary pleadings and

appropriate issue regarding title (either specific, or implied

as noticed in Annaimuthu Thevar (supra)). Where the

averments regarding title are absent in a plaint and where

there is no issue relating to title, the court will not 

11

investigate or examine or render a finding on a question of

title, in a suit for injunction. Even where there are necessary

pleadings and issue, if the matter involves complicated

questions of fact and law relating to title, the court will

relegate the parties to the remedy by way of comprehensive

suit for declaration of title, instead of deciding the issue in a

suit for mere injunction.

(d) Where there are necessary pleadings regarding

title, and appropriate issue relating to title on which parties

lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding

title, even in a suit for injunction. But such cases, are the

exception to the normal rule that question of title will not be

decided in suits for injunction. But persons having clear title

and possession suing for injunction, should not be driven to

the costlier and more cumbersome remedy of a suit for

declaration, merely because some meddler vexatiously or

wrongfully makes a claim or tries to encroach upon his

property. The court should use its discretion carefully to

identify cases where it will enquire into title and cases

where it will refer to plaintiff to a more comprehensive

declaratory suit, depending upon the facts of the case.”

19. In Para 21 (b) of Anathula Sudhakar (supra) it was held

that a suit for injunction simpliciter is concerned only with

possession. Normally the issue of title will not be directly and

substantially in issue. The prayer for injunction will be decided

with reference to the finding on possession. But in cases where

de jure possession has to be established on the basis of title to

the property, as in the case of vacant sites, the issue of title may 

12

directly or substantially arise for consideration, as without a

finding thereon, it will not be possible to decide the issue of

possession. The law as summarized in Anathula Sudhakar

(supra) has to be considered keeping in view all the clauses (a)

to (d), and clause (b) is not to be read in isolation. It was held in

clear terms in clause (d) that “But persons having clear title and

possession seeking for injunction should not be driven to the

costlier and more cumbersome remedy of a suit for declaration,

merely because some meddler vexatiously or wrongfully makes

a claim or tries to encroach upon his property. The Court

should use its discretion carefully to identify cases where it will

enquire into title and cases where it will refer to the plaintiff to a

more comprehensive declaratory suit, depending upon the facts

of the case.”

20. In Jharkhand State Housing Board v. Didar Singh2,

the Hon’ble Apex Court held that in each and every case where

the defendant disputes the title of the plaintiff it is not

necessary that in all those cases the plaintiff has to seek the

relief of declaration. It is further held that a suit for mere

injunction does not lie only when the defendant raises a

genuine dispute with regard to title and when he raises a cloud

over the title of the plaintiff, then necessarily in those

2

(2019) 17 SCC 692

13

circumstances, the plaintiff cannot maintain a suit for bare

injunction.

21. In Para 11 of the Jharkhand State Housing Board

(supra) is reproduced as under:-

“11. It is well settled by catena of judgments of this

Court that in each and every case where the defendant

disputes the title of the plaintiff it is not necessary that in

all those cases the plaintiff has to seek the relief of

declaration. A suit for mere injunction does not lie only

when the defendant raises a genuine dispute with regard

to title and when he raises a cloud over the title of the

plaintiff, then necessarily in those circumstances, the

plaintiff cannot maintain a suit for bare injunction.”

22. The suit was filed based on title to the property vide

registered sale deed dated 25.09.1996 and being in possession.

23. The issue involved was very simple. The plaintiff claimed

title based on the registered sale deed dated 25.09.1996. The

title of the petitioner’s vendor was not in dispute. The appellants

claimed title based on the registered sale deed in their favour

dated 25.02.2008 executed by the power of attorney holder of

the same vendor. The plaintiff as also the defendants are not at

issue that Gogineni Venkataramana was the owner. The

registered sale deed in favour of the plaintiff dated 25.09.1996

is prior in point of time than the sale deed in favour of the

defendants dated 25.02.2008. The suit did not involve a 

14

complicated question on title. Nor the appellants’ sale deed

dated 25.02.2008 could be considered as casting cloud on the

title of the plaintiff based on her earlier registered sale deed

dated 25.09.1996. The appellants, merely by disputing the

petitioner’s sale deed that it was not signed by the plaintiff’s

vendor because he used to sign in English, in the view of this

Court cannot be considered to caste cloud on the plaintiffs title,

so as to direct the plaintiff to seek the costlier and more

cumbersome remedy of relief of declaration. The learned Trial

Court has carefully exercised the discretion vested in it in terms

of Para 21 (d) of Anathula Sudhakar (supra).

24. Learned Trial Court on consideration of the entire oral

and documentary evidence recorded finding that the plaintiff is

in possession of the plaint scheduled property. The learned

appellate court also affirmed the said finding. It also considered

the evidence on record and came to the same conclusion as

reached by the learned Trial Court. The finding on the point of

possession is a finding of fact. It is based on consideration of

the evidence on record by both the courts below. It is

concurrent finding of fact. In the exercise of second appellate

jurisdiction under Section 100 of the Code of Civil Procedure

such finding of fact is not open to interference by this Court.

15

25. In Nazir Mohamed v. J. Kamala and others3, the

Hon’ble Apex Court reiterated that in a Second Appeal the

jurisdiction of the High Court being confined to substantial

question of law, a finding of fact is not open to challenge in

second appeal, even if the appreciation of evidence is palpably

erroneous and the finding of fact incorrect.

26. In Nazir Mohamed (supra), it was further restated that

the general rule is, that the High Court will not interfere with

the concurrent findings of the Courts below. But it is not an

absolute rule. Some of the well-recognised exceptions are where

(i) the courts below have ignored material evidence or acted on

no evidence; (ii) the courts have drawn wrong inferences from

proved facts by applying the law erroneously; or (iii) the courts

have wrongly cast the burden of proof. A decision based on no

evidence, does not refer only to cases where there is a total

dearth of evidence, but also refers to case, where the evidence,

taken as a whole, is not reasonably capable of supporting the

finding.

27. It is apt to reproduce Paragraphs 28 to 33.4 as under:-

“28. To be “substantial”, a question of law must be

debatable, not previously settled by the law of the land or

any binding precedent, and must have a material bearing on

3

(2020) 19 SCC 57

16

the decision of the case and/or the rights of the parties before

it, if answered either way.

29. To be a question of law “involved in the case”, there

must be first, a foundation for it laid in the pleadings, and the

question should emerge from the sustainable findings of fact,

arrived at by courts of facts, and it must be necessary to

decide that question of law for a just and proper decision of

the case.

30. Where no such question of law, nor even a mixed

question of law and fact was urged before the trial court or

the first appellate court, as in this case, a second appeal

cannot be entertained, as held by this Court in Panchugopal

Barua v. Umesh Chandra Goswami [Panchugopal

Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713] .

31. Whether a question of law is a substantial one and

whether such question is involved in the case or not, would

depend on the facts and circumstances of each case. The

paramount overall consideration is the need for striking a

judicious balance between the indispensable obligation to do

justice at all stages and the impelling necessity of avoiding

prolongation in the life of any lis. This proposition finds

support from Santosh Hazari v. Purushottam Tiwari [Santosh

Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] .

32. In a second appeal, the jurisdiction of the High Court

being confined to substantial question of law, a finding of fact

is not open to challenge in second appeal, even if the

appreciation of evidence is palpably erroneous and the

finding of fact incorrect as held in V. Ramachandra

Ayyar v. Ramalingam Chettiar [V. Ramachandra

Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302] . An

entirely new point, raised for the first time, before the High

Court, is not a question involved in the case, unless it goes to

the root of the matter.

17

33. The principles relating to Section 100 CPC relevant

for this case may be summarised thus:

33.1. An inference of fact from the recitals or contents of a

document is a question of fact, but the legal effect of the

terms of a document is a question of law. Construction of a

document, involving the application of any principle of law, is

also a question of law. Therefore, when there is

misconstruction of a document or wrong application of a

principle of law in construing a document, it gives rise to a

question of law.

33.2. The High Court should be satisfied that the case

involves a substantial question of law, and not a mere

question of law. A question of law having a material bearing

on the decision of the case (that is, a question, answer to

which affects the rights of parties to the suit) will be a

substantial question of law, if it is not covered by any specific

provisions of law or settled legal principle emerging from

binding precedents, and, involves a debatable legal issue.

33.3. A substantial question of law will also arise in a

contrary situation, where the legal position is clear, either on

account of express provisions of law or binding precedents,

but the court below has decided the matter, either ignoring or

acting contrary to such legal principle. In the second type of

cases, the substantial question of law arises not because the

law is still debatable, but because the decision rendered on a

material question, violates the settled position of law.

33.4. The general rule is, that the High Court will not

interfere with the concurrent findings of the courts below. But

it is not an absolute rule. Some of the well-recognised

exceptions are where : (i) the courts below have ignored

material evidence or acted on no evidence; (ii) the courts have

drawn wrong inferences from proved facts by applying the

law erroneously; or (iii) the courts have wrongly cast the 

18

burden of proof. A decision based on no evidence, does not

refer only to cases where there is a total dearth of evidence,

but also refers to case, where the evidence, taken as a whole,

is not reasonably capable of supporting the finding.”

28. As aforesaid the finding on the point of plaintiffs

possession affirmed by the Appellate Court could not be shown

to be suffering from any of the infirmities on which the finding

of fact is open for challenge in the exercise of the second

appellate jurisdiction.

29. Even based simply on the finding of possession, the

plaintiffs suit for injunction was rightly decreed.

30. In Hari Narayan Bansal v. Dada Dev Mandir

Prabandhak Sabha4, the Hon’ble Apex Court has held that a

substantial question of law is not required to be framed if the

High Court decides to dismiss the second appeal at the

admission stage. Only in a case where the second appeal is

admitted or is decided finally by allowing the same, a

substantial question of law is required to be framed by the High

Court.

31. Para 3 of Hari Narayan Bansal (supra) is reproduced as

under:-

“3. In our opinion, a substantial question of law is not

required to be framed if the High Court decides to dismiss

4

(2015) 16 SCC 540

19

the second appeal at an admission stage. Only in a case

where the second appeal is admitted or is decided finally

by allowing the same, a substantial question of law is

required to be framed by the High Court. In the instant

case, no substantial question of law was involved in the

second appeal and therefore, the High Court had rightly

dismissed the second appeal at the admission stage by

passing the impugned order. We, therefore, see no reason

to entertain this petition.”

32. The learned Appellate Court did not commit any illegality

in affirming the decree of the learned Trial Court.

33. The second appeal does not involve any substantial

question of law.

34. The Second Appeal is dismissed at the admission stage.

No order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending,

shall also stand closed.

__________________________

 RAVI NATH TILHARI, J

Date: 21.09.2023

SCS

Note:-

L.R. Copy to be marked

20

105

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

SECOND APPEAL No.395 of 2023

Date: __________.2023

Scs